Michael Pittman v. State of Illinois

OPINION

STORINO, J. THIS MATTER is before the Court on a Complaint filed by Claimants seeking compensation for the death of Charles Pittman, who was accidentally shot and killed by a hunter in Mississippi Palisades State Park (“Park”) on November 18, 2006. Claimants are Mr. Pittman’s four adult children who seek wrongful death and survival action damages.

The Park is owned by the State of Illinois and is under the control of the Illinois Department of Natural Resources (“IDNR”). Claimants allege that the Respondent was willful and wanton, as well as negligent, in failing to adequately warn or inform people entering the Park: (1) that gun hunting was occurring, and/or (2) of Park locations where gun hunting was permitted. Claimants seek the statutory maximum damages of $500,000. Claimants settled their claim with the hunter, Miles Floit, and received $250,000 in that case. The parties agree the award from Mr. Floit must be set off against any damages that may be awarded in this case.

The Respondent asserted the affirmative defense that the Illinois Recreational Use of Land and Waters Area Act (“Recreational Use Act” or “Act”), 745 ILCS 65/1 et seq., applies in this case and essentially immunizes the Respondent from liability with the exception of conduct that is willful and wanton.

FACTS

The primary facts of this case are undisputed. Since at least 1982, the Park opened a portion of the Park every year on the weekend before Thanksgiving for three days of gun deer hunting (“Gun Deer Hunting Season”). During Gun Deer Hunting Season, the portion of the Park that is open to hunters is closed to non-hunters. Except during Gun Deer Hunting Season, a portion of the Park is also open each year from approximately November 1 to December 31 for bow hunting (“Bow Hunting Season”). During Bow Hunting Season, all portions of the Park are open to non-hunters.

The Park has two main gates open to vehicular traffic. In addition, people can access the Park on foot via the service roads. Each year, IDNR employees place signs that read “ROAD CLOSED FOR GUN DEER SEASON” on the roads at the main gates. These signs are posted only during Gun Deer Hunting season. A couple of weeks prior to the start of Bow Hunting [*122] Season, IDNR employees place signs along Park paths that read “CAUTION HUNTING AREA” and “RESTRICTED AREA - CLOSED TO HUNTING” to inform people where hunting is and is not permitted. These signs are removed after Bow Hunting Season ends.

In addition to the signage, IDNR notifies the public of Gun Deer Hunting Season by placing notices in local papers, airing announcements on the radio, and offering handouts with the information at various locations in the Park. In 2006, the information was also on the Park office’s answering machine and on the Park website.

For several years before his death, Mr. Pittman visited the Park regularly with his dog.

IDNR employees knew that he frequently parked at the Pine Turn-Around Gate and entered the Park on foot using a nearby service road. Although admonished by IDNR employees that his dog needed to be on a leash, he was frequently seen by the employees with his dog unleashed. On one occasion, when an employee of IDNR commented about the dog being off his leash, Mr.

Pittman responded that, unlike the hunters, his dog did not bother the deer and turkeys.

In 2006, the Gun Deer Hunting Season at the Park was from November 16 to November 18. On November 18, 2006, Mr. Pittman parked his vehicle at the Pine Turn-Around Gate and entered the Park on the service road on foot with his unleashed dog. The road had a gate across it with a sign that read “FOOT TRAVEL ONLY.” Posted on the side of the gate was a sign that read “CAUTION HUNTING AREA.” At various places along the service road on the side closest to the Park boundary, there were signs that read “RESTRICTED AREA - CLOSED TO

HUNTING.”

Upon entering the Park, Mr. Pittman walked along the service road with his dog. He was wearing dark colored clothing making him difficult to see. Mr. Floit was at a deer stand hunting for deer. He heard a noise that he believed was caused by a deer from an area that was hidden from view by tall grass. He shot in the direction of the noise. When he heard further rustling in the grass, he shot again. He killed both Mr. Pittman and the dog. Mr. Pittman was 79 years of age at the time of his death.

LEGAL ANALYSIS

Respondent argues that the Illinois Recreational Use of Land and Waters Area Act is applicable and bars liability of the State in this case. Claimants argue the Recreational Use Act does not apply to Mr. Pittman because he did not use the land for the purpose of hunting. Both parties agree that the Recreational Use Act limits the State’s liability for injuries sustained by certain persons and property on State land open to public use at no fee. However, they disagree whether the State had limited liability as to Mr. Pittman under the version of the Act in effect at the time of the accident.

The purpose of the Recreational Use Act is to “encourage owners of land to make land and water areas available to any individual or members of the public for recreational or conservation purposes by limiting their liability toward persons entering thereon for such purposes.” (745 ILCS 65/1). The Act, which expressly includes the State as a protected landowner, provides that “an owner of land who permits without charge any person to use such [*123] property for recreational or conservation purposes does not thereby…assume responsibility for or incur liability for any injury to person or property caused by an act or omission of such person or any other person who enters upon the land.” (745 ILCS 65/4(c)). The Recreational Use Act limits liability of a landowner except where there is evidence of the landowner’s “willful and wanton failure to guard or warn against a dangerous condition, use, structure or activity.” (735 ILCS 65/6(a)). At the time of the incident in 2006, the Recreational Use Act defined “recreational or conservation purposes” as “entry on the land of another to conduct hunting or recreational shooting or a combination thereof or any activity solely related to the aforesaid hunting or recreational shooting.” Id. (effective Aug. 18, 2005 to Jan. 1, 2014).

Claimants argue that the Act in effect in 2006 limited the State’s liability only as to persons who were on the land to hunt or shoot and because Mr. Pittman was not on the land to hunt or shoot, the Act does not apply to him. The Respondent argues that the Recreational Use Act applies to injuries incurred to all persons and property caused by those on the property conducting hunting or recreational shooting. We agree with the Respondent in this regard and find that the Recreational Use Act is applicable in the matter at hand.

The Recreational Use Act immunizes a landowner from liability for injuries caused by ordinary negligence absent willful and wanton conduct. (745 ILCS 65/1, et seq.; see Olin v.

State, 48 Ill. Ct. Cl. 366 (1996); Duncan v. State, 47 Ill. Ct. Cl. 51 (1995); Sherman v. State, 51 Ill. Ct. Cl. 230 (1998); Moore v. State, 51 Ill. Ct. Cl. 376 (1998)). The Act, as written at the time of the incident in 2006, plainly provides that “an owner of land who permits without charge any person to use such property for recreational or conservation purposes does not thereby: [a]ssume responsibility for or incur liability for any injury to person or property caused by an act or omission of such person or any other person who enters upon the land.” (745 ILCS 65/4(c)). In 2006, at the time of Mr. Pittman’s death, recreational or conservation purposes was limited to hunting, recreational shooting, a combination thereof, or any related activity. (745 ILCS 65/2(c)).

Even though Mr. Pittman, himself was not in the State Park for “recreational purposes” as defined by the Act, immunity still applies. Immunity applies because the Act specifically provides that a landowner, including the State, does not “[a]ssume responsibility for or incur liability for any injury to person…caused by…any other person who enters upon the land.” (745 ILCS 65/4(c)). This language specifically contemplates injuries caused by hunters to others, including non-hunters. Therefore, the Respondent as the landowner does not “assume responsibility for or incur liability for” the injuries caused to Mr. Pittman.

As such, the Recreational Use Act immunizes the Respondent from liability in this case absent a finding that Respondent engaged in willful and wanton conduct. (See 745 ILCS 65/6).

The evidence before this Court fails to reveal any such willful and wanton conduct on behalf of Respondent. Instead, the evidence illustrates there were warning signs regarding the hunting activities taking place at the Park. Specifically, the access gate where Mr. Pittman entered the park contained a “CAUTION HUNTING AREA” warning sign. Additional signs were also located at various places along the service road on the side closest to the Park boundary that read

“RESTRICTED AREA - CLOSED TO HUNTING.”

Claimants argue that even though such cautionary signs existed at the entrance used by Mr. Pittman, such signs were not enough to preclude a finding of willful and wanton conduct on [*124] behalf of Respondent. “Willful and wanton conduct may be found to exist where the local public entity takes no action to correct a condition even though it was informed about the dangerous condition and knew that other persons had previously been injured because of the dangerous condition…However, where there are no facts or allegations to show that the local public entity engaged in any intentional act or knew of other injuries or accidents caused by the allegedly dangerous condition, the conduct of the local public entity does not rise to the level of willful and wanton conduct.” Dunbar v. Latting, 250 Ill. App. 3d 786, 792, 621 N.E.2d 232, 237 (3rd Dist. 1993). As such, Respondent’s alleged insufficient failure to adequately warn only rises to the level of willful and wanton conduct if Respondent knew of other prior injuries or accidents; only then could Respondent have consciously disregarded a known risk.

In this case, there is no evidence before this Court that the Respondent engaged in any intentional act or knew of other injuries or accidents caused by the allegedly dangerous condition, thereby giving rise to liability. To the contrary, the evidence established that Respondent has been allowing access to the Park to hunters and non-hunters and providing the same warnings for over 20 years prior to the instant incident and, in that duration, there had never been an incident where a non-hunter was shot or injured by a hunter. Leading up to November 18, 2006, there was no incident of a prior injury to put Respondent on notice that the manner in which it was warning of gun hunting in the Park while allowing both hunters and nonhunters in the Park was somehow inadequate. Accordingly, the evidence before this Court fails to reveal any such willful and wanton conduct on behalf of Respondent. As such, the immunity provided by the Recreational Use Act applies and bars liability of Respondent in the case at hand.

IT IS HEREBY ORDERED that based upon the reasons set forth hereinabove, Claimant’s claim is denied and this matter is hereby dismissed with prejudice.